POUDEL v Minister for Immigration

[2016] FCCA 90

FEDERAL CIRCUIT COURT OF AUSTRALIA

POUDEL v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 90

Catchwords:
MIGRATION – Student (Temporary) (Class TU) Subclass 573 Higher Education Sector – review of decision of Migration Review Tribunal – cancellation of visa under s.116(1)(fa) of the Migration Act 1958 (Cth) – applicant not considered a genuine student – whether the Tribunal considered the applicant’s claims – whether the Tribunal’s decision was unreasonable or capricious – no jurisdictional error – application dismissed.

Legislation:

Migration Act 1958 (Cth), ss.116(1)(fa), 136, 368

Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; 240 CLR 611
Minister for Immigration & Citizenship v SZOCT (2010) 189 FCR 577
SZNKO v Minister for Immigration & Citizenship [2013] FCA 123; 140 ALD 78

SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1
Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99
SZRLQ v Minister for Immigration & Citizenship [2013] FCA 566
SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175

Applicant: BHISHMA POUDEL

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 704 of 2015

Judgment of: Judge Smith

Hearing date: 9 December 2015

Date of Last Submission: 9 December 2015

Delivered at: Sydney

Delivered on: 4 February 2016

REPRESENTATION

Counsel for the Applicant: Mr J. Young

Solicitors for the Applicant: Shamser Thapa & Associates

Counsel for the First Respondent: Mr T. Reilly

Solicitors for the Respondents: Mills Oakley

ORDERS

1. The application be dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 704 of 2015

BHISHMA POUDEL

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Background

1. The applicant was granted a Student (Temporary) (Class TU) Subclass 573 Higher Education Sector visa on 14 June 2012. Although he enrolled in a number of courses, by the beginning of November 2014 the applicant had not successfully completed a single unit or course of study. Consequently, he was notified by letter dated 3 November 2014 of an intention to cancel that visa on the basis that he did not appear to be a genuine student.

2. The applicant’s migration agent responded to this letter by email dated 10 November 2014. He explained that the applicant had been unable to continue studies because he was not sure about his study path and so kept changing his studies. The applicant said that he was not able to concentrate on his studies because there was nobody in Australia to guide him about his future and career. He also said that, when he finally decided to commence studies in “Business”, he faced financial difficulties. Those difficulties were brought about by his father’s illness, the treatment for which was expensive. The funds that were supposed to have paid for the applicant’s study went instead to pay for his father’s treatment.

3. The applicant also made a statutory declaration in which he indicated, amongst other things, that, as a result of his father’s illness, he was unable to concentrate and that he was mentally unstable and unable to decide what to do.

4. The applicant sent the Department a copy of a medical certificate which stated that his father suffered from community acquired pneumonia and was admitted to hospital on 15 July 2014 and discharged on 24 September 2014.

5. On 18 December 2014 a delegate of the Minister made a decision to cancel the applicant’s visa and the applicant applied to the Migration Review Tribunal[1] for review of that decision.

   [1] As it was then known. On 1 July 2015 it became the Administrative Appeals Tribunal: Tribunals Amalgamation Act 2015 (Cth).

6. In support of his application, the applicant’s migration agents made written submissions to the Tribunal, relevantly submitting that

   [2]… the only reason that the applicant failed his previous units and courses was due to circumstances outside of his control as his father was hospitalised with Community Acquired Pneumonia and admitted to hospital and admitted to hospital and put on a ventilator for forty days which led him [the applicant] being unable to concentrate on his studies or daily activities.”

   They added that the applicant’s father’s illness had caused the applicant to have “mental instability” and that the funds that were supposed to be used for his studies were used instead for the applicant’s father’s treatment.

The Tribunal’s decision

1. The applicant attended a hearing conducted by the Tribunal on 25 February 2015 and the Tribunal gave its decision on the same day.

2. The Tribunal found that the applicant had not completed a single course, or passed a single subject since his visa was granted. The Tribunal held that there were no legitimate reasons explaining his poor academic history. In particular, it did not accept that the medical condition of the applicant’s father (even if true), and any resultant condition affecting the applicant himself, were the reasons for his poor academic progress. For that reason, the Tribunal was satisfied that the applicant was not a genuine student and that there was a ground for cancelling his visa under sub-s.116(1)(fa) of the Migration Act 1958 (Cth).

3. The Tribunal then considered whether or not to exercise the discretion to cancel the applicant’s visa and decided that the visa should be cancelled. For that reason, it affirmed the delegate’s decision.

Consideration

1. The applicant contends that the Tribunal’s decision fell into jurisdictional error as it was unreasonable or capricious. He notes correctly that there are two aspects to a decision to cancel under s.116: first, the satisfaction of certain matters; and, secondly, the discretion whether or not to cancel.

2. Sub-section 116(1)(fa) provides that, subject to immaterial exceptions;

   (1)… the Minister may cancel a visa if he or she is satisfied that …

   (i)its holder is not, or is likely not to be, a genuine student.

   …

3. The applicant’s arguments concern the first part of a decision to cancel, that is, the Tribunal’s satisfaction that the applicant was not a genuine student. The Minister accepted that if that aspect of the decision was affected by jurisdictional error, then the ultimate decision to cancel was also affected.

4. The applicant argued the application on the basis of the principles explained in Minister for Immigration & Citizenship v SZMDS [2010] HCA 16; 240 CLR 611. That decision was recently considered by the Full Court of the Federal Court in SZTAP v Minister for Immigration & Border Protection [2015] FCAFC 175. There, the plurality (Robertson and Kerr JJ) said:

   [59]In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611, the dispute concerned the adverse inferences which the Tribunal drew from its rejection of the account given by SZMDS of his personal history. The Tribunal rejected the claim of SZMDS to membership of a particular social group, being male homosexuals in Pakistan. The Tribunal concluded that SZMDS was not a homosexual and the primary judge held there were defects in the inferential reasoning to that conclusion which constituted jurisdictional error. This conclusion was, by majority, reversed: Heydon, Crennan and Bell JJ constituted the majority and Gummow A-CJ and Kiefel J dissented in the result. The majority held, at [78] and [131], that what was involved was an issue of jurisdictional fact upon which different minds might reach different conclusions. In this respect, Crennan and Bell JJ said, at [130]-[133]:

   ... Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

   What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. ...

   Was the Tribunal’s fact finding “illogical” or “irrational”?

   Because illogicality or irrationality may constitute a basis for judicial review in the context of jurisdictional fact finding as explained above, it becomes necessary to decide whether the Tribunal’s conclusion about the state of satisfaction required by s 65 and its findings on the way to that conclusion revealed illogicality or irrationality amounting to jurisdictional error. ...

   However, the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings it did make on the material before it. ...

   [60]It is not a matter of that species of reasonableness review which concentrates on the outcome of the exercise of power, but reasonableness review which concentrates on an examination of the reasoning process by which the decision-maker arrived at the exercise of power: see Minister for Immigration and Border Protection v Singh [2014] FCAFC 1; 231 FCR 437 at [47].

5. The focus on the decision-maker’s process of reasoning at arriving at a decision does not detract from the fact that it must be the ultimate decision that is affected by the relevant unreasonableness. In Minister for Immigration & Citizenship v SZRKT [2013] FCA 317; 212 FCR 99 Robertson J explained:

   [158]It may be of course, that irrationality in respect of one finding is immaterial given other findings, as adverted to, for example, by Nicholas J in Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577 at [83]-[84].

6. In Minister for Immigration and Citizenship v SZOCT (2010) 189 FCR 577, Nicholas J said:

   [83]If the Tribunal’s lack of satisfaction that the respondent was a person to whom Australia owed protection obligations was based on its assessment of the extent of the respondent’s knowledge of the Bible when compared to what might reasonably be expected of a person who believed in and practiced Christianity in China from 2004 until 2008, I would readily agree with Jacobson J that the Tribunal’s decision could not be permitted to stand. However, as its reasons for decision make clear, there were other matters which led the Tribunal to find that the respondent was not a credible witness. It drew upon these “singularly and cumulatively” in support of that finding.

   [84]The other matters relied upon by the Tribunal were logically and rationally capable of supporting the Tribunal’s finding that the respondent was not a witness of truth. Once the Tribunal found, as was open to it, that the respondent was not a witness of truth, it was also open to the Tribunal to hold that it was not satisfied that the respondent was a non-citizen to whom Australia owed protection obligations.

   See also SZOOR v Minister for Immigration & Citizenship (2012) 202 FCR 1 at [85] (McKerracher J); SZNKO v Minister for Immigration & Citizenship [2013] FCA 123; 140 ALD 78 at [111]-[113], [125] (Barker J); SZRLQ v Minister for Immigration & Citizenship [2013] FCA 566 at [66] (Yates J).

First point

1. The applicant focuses on a number of matters in the Tribunal’s decision. The first matter was not raised in the application but Mr Reilly, who appeared for the Minister, was able to deal with it at the hearing. It was that the applicant’s change of course was irrelevant to the issue of whether the applicant was a genuine student. More precisely, the argument was that the Tribunal’s focus on this issue was unreasonable because changing course did not, of itself, establish that the applicant was not a genuine student. In my view, this argument mischaracterised the Tribunal’s decision. The argument relied on [12] of the Tribunal’s decision in which the Tribunal said:

   [12]Secondly, the Tribunal considers it significant that the applicant was granted the student visa on the basis of his stated intention to undertake a Diploma of Commerce and a Bachelor of Commerce. Before his visa was granted, the applicant would have been assessed as a genuine temporary entrant. The decision maker would have assessed, amongst other things, the applicant’s capacity to understand the intended course, the relevance of that course to his past study and future career plans. By transferring from the Commerce court to a business course to a hospitality course, the applicant had undermined the assessment. If the applicant determined that he no longer liked commerce or business studies, if he decided that hospitality was of greater interest to him, it was incumbent on him to seek the appropriate student visa for such study. That would have enabled a decision-maker to assess the suitability of the course, as well as assess the applicant against the requirements of the appropriate visa level, the vocational study. Instead, the applicant continued to hold the higher education sector visa but chose to undertake a Certificate course.

2. The Tribunal did not, either in this passage or elsewhere in its reasons, proceed on the basis that simply to change courses established that a person was not a genuine student. The Tribunal found the fact that the applicant had changed course from that for which he had been granted the student visa was “significant”, not that it was decisive. If it had been otherwise, it would not have been necessary for the Tribunal to go on to consider, as it did, the balance of the circumstances of the case. Given that the Tribunal’s statement of reasons was prepared in accordance with its obligation under s.368 of the Act, it is readily inferred that the Tribunal considered that all of the other facts it set out were material to its decision. On that basis, this point does not establish any error affecting the Tribunal’s decision.

Second and third points

1. The second and third points concern the way in which the Tribunal dealt with the claim concerning the effect on the applicant of his father’s health condition. The second point related to the way in which the Tribunal dealt with the medical certificate concerning the health of the applicant’s father. The third point concerned the way in which the Tribunal dealt with the impact on the applicant of his father’s health. The relevant passage in the Tribunal’s decision was at [13] where it said:

   [13] The applicant also claims that from July 2014 his father had been hospitalised and as a result, he was distressed and unable to concentrate. The applicant presented to the delegate his father’s medical certificate. The Tribunal does not accept these claims. Various reports before the Tribunal indicate that Nepalese documents can be obtained by fraud. As such, the Tribunal does not consider the father’s medical certificate of probative value. More significantly, the applicant has not presented any probative documentary evidence of his own condition or ailment that he claims had affected his ability to concentrate on his studies. The Tribunal is mindful that claims of depression and mental health ailments are so common (indeed, inevitable) in the student cancellation cases as to cause the Tribunal to question the probative value or such claims. In the absence of proper, independent and verifiable evidence, the Tribunal does not accept the applicant’s assertions that he was too distressed to concentrate on his studies.

2. The applicant argues that it was not open to the Tribunal simply to dismiss the claim about his father’s health simply because of evidence about document fraud. That argument does not come to grips with the actual reasoning of the Tribunal. It is correct to say that the Tribunal gave no probative value to the medical certificate because of evidence about the availability of fraudulent documents in Nepal; however, that was neither unreasonable nor the only basis for the Tribunal’s rejection of the claim concerning the applicant’s father’s health.

3. The Tribunal relied on country information about document fraud but, although it referred to the source of that information, it did not purport to set out the entirety of the information. The source of the information was not in evidence, but was entitled “Nepal: Prevalence of forged, fake or falsely acquired documents …” Absent evidence that shows that the information in that source could not logically support the Tribunal’s finding it must be concluded that the finding was open on the material.

4. The Tribunal’s summary of the effect of the evidence was that Nepalese documents can be obtained by fraud. The applicant argued that this was no support for the Tribunal’s conclusion about the medical certificate because the same could be said about documents from any country. That, however, is not the point. The Tribunal had information about the prevalence of document fraud in Nepal and it is open to infer from the ready availability of such documents that a particular document was so obtained. The Tribunal did not reason that all documents from Nepal must be fraudulent. To do so may have been to apply the logical flaw of the undistributed middle. For those reasons, I find that there was no error in the way in which the Tribunal dealt with the medical certificate.

5. The applicant’s third point is that, by relying on its experience of claims made in other student visa cancellations, the Tribunal failed to address itself to the particular circumstances of the applicant. In particular, the Tribunal failed to appreciate that the applicant did not claim that he had any condition, but only that he could not concentrate. While the applicant accepted that the Tribunal, as a specialist tribunal, could gain, and use, experience from other matters, doing so in this matter was wrongly to adopt a rule or policy. Stated in this way, the point is not in truth one that raises unreasonableness. However, bearing in mind that the underlying issue is the seriousness of any mistake made by the Tribunal, rather than the label that might be attached to the error, I will leave that to one side.

6. I do not accept that the Tribunal failed to consider the personal circumstances of the applicant. The applicant claimed more than that he could not concentrate. He claimed, more than once, that he was “mentally unstable” and he also claimed that he locked himself up in his room thinking about his father. In those circumstances, and given the Tribunal’s experience with the prevalence of health claims in student visa cancellation cases, there was nothing unreasonable in the Tribunal rejecting a claim without some independent evidence of the effect of the ill-health of the applicant’s father. It may be noted in addition that the delegate had found that there was no evidence to support the applicant’s claim.

7. Even if it was not open to the Tribunal to deal with the medical certificate or the applicant’s own health in the way that it did, it did not affect the decision. First, it is clear from the balance of [13] that what counted in the Tribunal’s view was the fact that, even if the applicant’s father was sick, it did not accept that that had any relevant effect on the applicant. Secondly, it found that, even if the applicant’s father had been ill and it had had an effect on the applicant, they were not the reasons for the applicant’s poor academic progress: [16]. For that reason, any unreasonableness affecting those matters did not amount to jurisdictional error.

Fourth point

1. The applicant’s fourth point concerns the following passage in the Tribunal’s reasons:

   [15]Fourthly, the Tribunal considers it significant that the applicant chose to remain in Australia at the time when he claims he was too distressed to study. In the Tribunal’s view, if the applicant was a genuine student, and if was genuinely affected by his father’s illness to the extent that he could not engage in studies, there was simply no reason for the applicant to remain in Australia. The fact that he chose to remain in Australia holding the student visa, when he could not study, suggests that he was here for purposes other than studying and that he is not a genuine student.

1. The applicant argued that this was capricious. He also claimed that what the Tribunal impermissibly did was to apply the rule that any person in the applicant’s shoes would have chosen to return to Nepal rather than remain in Australia. I disagree. The point underlying the Tribunal’s reasoning was that there is a clear tension between a person’s statement that he or she only wants to be in Australia in order to study and the fact that that person stays here even though he or she cannot study in light of dire personal circumstances at home. The Tribunal concluded from this tension that staying in Australia in those circumstances “suggests” that the applicant was here for purposes other than studying. The applicant’s argument thus proceeded on a mischaracterisation of the Tribunal’s reasons. There was nothing capricious in the way in which the Tribunal actually reasoned.

Fifth point

1. The applicant’s fifth point is that when dealing with the applicant’s claims concerning the financial impact of his father’s health, the Tribunal unfairly referred to a different basis upon which the cancellation power might arise. The critical sentence in the Tribunal’s decision is:

   [17]… it may also indicate that there is a ground for cancelling his visa under s. 116(1)(a) because the circumstances which permitted the grant ceased to exist. …

2. Whatever might be said of this sentence, it is perspicuously clear that it played no part in the Tribunal’s reasons for concluding that the ground under sub-s.116(1)(fa) was met. For that reason, it was immaterial to the Tribunal’s decision and does not evidence or amount to jurisdictional error.

Conclusion

1. For those reasons, none of the applicant’s arguments have established that the Tribunal’s decision was affected by jurisdictional error. The application must be dismissed.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Judge Smith

Associate: 

Date:  4 February 2016